Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Inconsistent verdicts - Turns on own facts

Criminal Code (WA), s 371A, s 378, s 392, s 401(1)

Fullgrabe v The State of Western Australia [2013] WASCA 130

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

1 McLURE P: This is an appeal against conviction. The appellant was charged on indictment with stealing a motor vehicle contrary to s 371A/s 378 of the Criminal Code (WA) (the Code) (count 1), aggravated armed robbery contrary to s 392 of the Code (count 2) and aggravated burglary contrary to s 401(1) of the Code (count 3). After a trial before a jury the appellant was acquitted of the offences the subject of counts 1 and 2 and convicted of aggravated burglary the subject of count 3.

1. On 6 August 2011 at Manning [the appellant] stole a motor vehicle, namely a Suzuki motorcycle ... the property of Michael Maynard.
2. On the same date at Manning [the appellant] stole from Mohammed Zreik, with violence, jewellery to the value of $3,500, a safe containing $1,500 and various documents the property of Mohammed Zreik.

And that [the appellant] was armed with an offensive weapon namely an electronic shock device.

1. On the same date at the same place as count (2) [the appellant], entered or was in the place of Figen Aydin without her consent, with intent to commit an offence therein.

And that [the appellant] was armed with an offensive weapon, namely an electronic shock device.

And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place.

And that the place was ordinarily used for human habitation.

3 All of the alleged offences related to a single transaction or incident. The appellant appeals on the sole ground that his conviction on count 3 is inconsistent with his acquittal on count 2. The appellant's appeal against his sentence has been dismissed: Fullgrabe v The State of Western Australia [2013] WASCA 130.

4 Mr Zreik and Ms Aydin were the primary witnesses called by the prosecution. In broad terms the State case was as follows. On the night of 6 August 2011 the appellant used Mr Maynard's motorcycle without his consent to ride to and from the home of Mohammed Zreik, Figen Aydin (the owner of the house) and her four children, one of whom was a baby. The home was in Cloister Avenue, Manning. The appellant, who was wearing camouflage pants and top, a cap, gloves and a cloth of some kind around his face, kicked in the front door of the house and entered it, shouting abusive threats and wielding an electronic shock device that was a kind of taser. Mr Zreik recognised the appellant and called out his name.

5 The appellant pushed Ms Aydin to the floor and kicked her in the leg. He also picked up a 'shisha', a traditional middle-eastern smoking pipe, and threw it at Mr Zreik. The appellant walked into the master bedroom and locked himself in. Ms Aydin stayed in the house with the children while Mr Zreik went next door and asked neighbours, who were in their front yard, if he could use their cordless telephone. He rang triple zero to summon the police. Whilst on the telephone, he saw the appellant walking across the road carrying a safe and boxes from his house. The appellant got onto a motorcycle, which was a dark colour, and rode it towards Mr Zreik before doing a U-turn and driving off in another direction. Jewellery and a safe containing passports, cash and other valuable items were missing from the house. On 11 August 2011 the police seized Mr Maynard's stolen motorcycle from an address in Gosnells where the appellant was living with his mother.

6 Mr Zreik knew the appellant. They had spent a few months together in the same unit at Casuarina Prison. They had also seen each other a few times after their release because they had a family connection. The appellant's former girlfriend and mother of his child, Laura Irvine, was in a relationship with Mr Zreik's brother-in-law, Carlos Moia. Ms Irvine also had a child to Mr Moia.

7 The appellant gave evidence at his trial, including alibi evidence, and called two witnesses, Matthew Irvine and his (the appellant's) fiancé, Tia Thurling. The appellant denied the offences. He said that on the night in question he was at his brother's house with Ms Thurling, his daughter and his sister. At around 9.00 pm Ms Thurling and his sister went out. He then received a telephone call from Laura Irvine who was in distress. He left his brother's house and drove to Mr Irvine's house in Maddington to drop off his daughter. Between 9.30 pm and 10.00 pm he left Mr Irvine's house and drove to Manning to try and find Ms Irvine. When he saw a heavy police presence in Manning he returned to his brother's house. The appellant's alibi was supported by Mr Irvine and Ms Thurling.

8 On any view, the jury must have positively rejected the appellant's alibi evidence and the evidence of the other defence witnesses. Further, the jury must have positively rejected the appellant's denial of count 3 and been satisfied beyond reasonable doubt that the appellant was the intruder who broke into Ms Aydin's house on 6 August 2011 without her consent with intent to commit an offence therein.

9 In order to convict the appellant of the offence the subject of count 2, the prosecution had to prove beyond reasonable doubt that the appellant stole some or all of the specified property that belonged to Mr Zreik and that the stealing was accompanied by actual violence, not threatened violence. The circumstances of aggravation are not elements of the offence.

10 By contrast, the elements of the offence the subject of count 3 are that the appellant entered or was in the place of Ms Aydin, without her consent, with intent to commit an offence therein. It is significant that the prosecution did not have to prove the commission of any offence in the house, be it robbery, stealing or otherwise. An intention to commit an offence was all that was required.

11 The elements of the offences the subject of counts 2 and 3 are different and without overlap. There is no claim of legal inconsistency. The claim is one of factual inconsistency. The legal principles relating to inconsistent verdicts are uncontroversial and can be shortly stated. The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). In essence, the question is whether the different verdicts in the case represent an affront to logic and common sense.

12 Ordinarily, the claim of inconsistent verdicts involves multiple offences involving only one complainant. In that context, the High Court has said that verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought or the complainant may have shown some uncertainty as to matters of detail or been shown to have a faulty recollection on some matters but not others. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case.

13 Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the jurors' innate sense of fairness and justice: MacKenzie (367); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34]; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71].

14 Finally, the significance of the verdict of not guilty must be considered not only by reference to the facts and circumstances of the case but also in the context of the directions given by the trial judge.

15 The appellant contends that this is an 'all or nothing case' in the sense that unless the jury was satisfied beyond reasonable doubt of the evidence of the complainants in relation to all of the elements of both offences the subject of counts 2 and 3, there was no alternative but to acquit on both counts. That is, the acquittal on count 2 necessitated the appellant's acquittal on count 3. That is a very difficult claim to make good.

16 I propose to start with the trial judge's directions in his summing up. After referring to the three charges he said:

Each of these charges is separate. You need to make a decision on each of these charges separately and you need to assess the evidence in relation to each of these charges separately (ts 264).

17 He repeated the point, directing that the charges had to be considered separately and 'you might reach the same conclusion on all of them but you might not' (ts 283). On the subject of the credibility (honesty and reliability) of the witnesses, the trial judge directed the jury as follows:

You have the power as jurors to believe or disbelieve the evidence of any of the witnesses. You might also believe a witness in relation to some parts and disbelieve the witness in relation to other parts (ts 267).

18 There was no objection at trial on behalf of the appellant to these standard directions. The jury did what the trial judge had directed that they could do.

19 On my examination of the evidence as a whole, the verdicts on counts 2 and 3 are not inconsistent. In particular, it was reasonably open to the jury as a matter of fact to be satisfied beyond reasonable doubt that the appellant had committed count 3 whilst at the same time not being satisfied beyond reasonable doubt that the appellant had stolen any of Mr Zreik's property particularised in count 2.

20 There was objective evidence supporting the evidence of Mr Zreik and Ms Aydin that an intruder had broken into Ms Aydin's house in Manning at around 9.00 pm on 6 August 2011 with an intent to commit an offence therein. In particular, there was photographic evidence of damage to the front door of the house, including the lock, and of the upturned state of the master bedroom, which had items strewn around it. In addition, there was the triple zero call made by Mr Zreik to police at 9.21 pm and the appellant's admission that he was in Manning on the night of the incident.

21 By contrast, there was no objective or independent evidence in relation to the stealing element of count 2. Further, the evidence of Mr Zreik and Ms Aydin relating to the appellant having stolen some or all of Mr Zreik's property particularised in that count was vigorously challenged by the defence.

22 First, the defence claimed it was unlikely that the appellant would have known of the existence and location of the safe in the master bedroom. Mr Zreik's evidence was that the only people who knew of the safe were himself, Ms Aydin and Mr Moia. The appellant gave evidence that he hated Mr Moia from which the jury were asked to infer that it was very unlikely that he was the source of the appellant's information on the subject.

23 Second, the defence relied on logistical difficulties in the appellant carrying away the safe and the jewellery boxes which Mr Zreik and Ms Aydin said were missing from the master bedroom. Mr Zreik described the safe as 25 cm long, 15 cm wide and 15 cm high. The defence case was that the storage capacity of Mr Maynard's motorcycle was insufficient to accommodate the safe and other allegedly stolen property and that it was unlikely the appellant could carry the stolen property at the same time as driving the motorcycle. Ms Aydin did not give evidence that she saw the driver carrying the stolen property.

24 Third, the defence relied on the absence of independent evidence of the theft of property from the house. Although police located Mr Maynard's stolen motorcycle at the property where the appellant was residing, no other allegedly stolen property was located. The caution with which the jury approached their task is evident in the acquittal on count 1.

25 Fourth, the defence suggested in cross-examination that the stolen property claim was motivated by a desire to obtain criminal injuries compensation.

26 In addition to these matters the defence challenged the reliability of the evidence given by Mr Zreik and Ms Aydin, particularly in relation to their recognition evidence, and relied on (modest) inconsistencies between their evidence given at trial and statements made to police on the night of the incident. In relation to Ms Aydin the inconsistencies included the following:

- her evidence of a threat made by the appellant to her baby son was not in her statement;

- her evidence that the intruder had exposed his face during the incident was not in her statement;

- in her statement she is recorded as saying that the appellant had kicked her in the chin and in her evidence she said he had kicked her in the leg;

- differences between her evidence and statement as to the time the appellant spent in the master bedroom and whether she had first recognised the appellant when he entered the house.

27 In relation to Mr Zreik, he gave evidence that the motorcycle on which the appellant departed had a yellow strip down the side, a matter not mentioned in his statement. He also gave evidence of having heard people outside the school across the road which was not in his statement.

28 Having regard to the facts and circumstances of the case, including the live issues pressed by the defence at trial, it was reasonably open to the jury to fail to be satisfied beyond reasonable doubt that the appellant had stolen any of the property the subject of count 2 without positively disbelieving the evidence of Mr Zreik and Ms Aydin on this subject. The acquittal on count 2 is not inconsistent with the jury having been properly satisfied beyond reasonable doubt of the truthfulness and reliability of the evidence of Mr Zreik and Ms Aydin relating to the aggravated burglary. The different verdicts on counts 2 and 3 reflect the evidence and issues at trial and are not an affront to logic and common sense. This is not, as the appellant contends, an all or nothing case.

29 The respondent also contends that it was reasonably open to the jury to acquit on count 2 on the basis that the prosecution had not proved

beyond reasonable doubt that the appellant had used actual violence in order to obtain the stolen property or to overcome resistance to it being stolen. The violence in question included the claims that the appellant pushed Ms Aydin to the ground and threw the smoking implement at Mr Zreik. Based on the trial judge's summing up, it is apparent that these acts of violence, their timing and purpose were not in serious contest at the trial (ts 271, 285 - 289). I am not persuaded that a failure to prove the use of actual violence is reasonably capable of explaining the different verdicts on counts 2 and 3.